By Ikechukwu Nnochiri
ABUJA—EMBATTLED former Speaker of the House of Representatives, Dimeji Bankole, yesterday, challenged the power of an Abuja High Court sitting at Apo, to try him for alleged fraud.
Bankole who went before the high court with an application seeking to quash the entire criminal charge against him, maintained that no court has the power to try him over any action he performed while exercising his powers as Speaker of the House of Representatives.
In an application he filed through his lead counsel, Chief Adegboyega Awomolo, SAN, the former Speaker relied on provisions of the Legislative Houses (Powers and Privileges) Act and the National Assembly Service Commission Act, to insist that he was immuned from prosecution, even as he contended that there was no evidence to sustain any of the 17-count charge against him.
He averred that in the exercise of his duties in matters relating to his office as Speaker of the House of Representatives, he cannot be prosecuted for the acts, decisions and resolutions of the House of Representatives, taken at its Executive or Committee sessions because the principle of vicarious liability was unknown to criminal law in Nigeria.
He equally applied for “an order quashing the charge against the accused/applicant in that the EFCC has neither statutory nor constitutional power to issue authority to a private prosecutor, to prosecute offences created by or under the Penal Code Act in any court of law, without the fiat of the Attorney-General of the Federation first being sought and obtained and usage of the powers as a vindictive weapon against the applicant.
“An order condemning EFCC for abuse of court process, malicious and reckless use of prosecutorial power of the Attorney-General of the Federation when it had no power or authority to appropriate the constitutional powers of attorney general. The Commission knew the position of the law but used it as a vindictive weapon to destroy the applicants’ political career.”
He also sought “an order directing the Chairman of EFCC to publicly apologize to the accused/applicant for public humiliation, denial of personal liberty, unlawful detention and discomfort to his person and family since Sunday, June 5, 2011.”
Adducing reasons why the EFCC boss should publicly apologize to him, Bankole maintained that he has been, “condemned, vilified, demoralized and branded a villain in the public domain as the charges against him were leaked by the prosecution to the public, before arraignment and after arraignment,” adding: “the prosecuting counsel, Mr. Festus Keyamo, granted television interviews where he publicly condemned the accused/applicant.”
He insisted that “the accused/applicant suffered deliberate harassment, intimidation, indignity, humiliation and persecution instead of prosecution when the bail granted him by the Federal High Court on June 13, 2011, was rendered ineffective by the adoption of serial prosecution,” adding: “The EFCC acted maliciously, recklessly and with impunity in the manner it treated the accused/applicant before and during the arraignments.”
Meanwhile, canvassing grounds that the court should consider in granting his application, Bankole, through his lawyer, said there was no scintilla of evidence contained or shown in the Proof of Evidence placed before the trial Court, capable of warranting the inference or conclusion that he was at any time, entrusted with the House of Representatives Account No. 0039007000018 with the United Bank for Africa Plc as alleged in Counts 2, 3, 4, 5 and 6 of the charge against him.
He stated: “The offences of criminal breach of trust and theft as alleged in Counts 2-17 if the Charge (as contemplated or defined in the Penal Code) cannot be committed by the applicant by ‘obtaining a loan to augment allowances and running costs of members of the House of Representatives in violation of the extant Revised Financial Regulations of the Federal Government of Nigeria, 2009′ or at all.
Criminal breach of trust
“The offences of criminal breach of trust and theft as alleged in Counts 2-17 of the Charge (as contemplated of defined in the Penal Code) cannot be committed by the applicant by ‘indiscriminately increasing the allowances of members of the House of Representatives in violation of the approved Remuneration Package for Political Public and Judicial Office Holders by the Revenue Mobilization, Financial Regulations of the Federal Government of Nigeria, 2009’ in that the Revised Regulations stipulate a punishment for the breach of its provisions.
“An agreement to ‘approve the allowances and/or “running cost” of Members of the House of Representatives in violation of the approved Remuneration Package for Political, Public and Judicial Office Holders by the Revenue Mobilization, Allocation and Fiscal Commission and the extant Revised Financial Regulations of the Federal Government of Nigeria, 2009’ as alleged in Count 1 of the Charge cannot be an offence within the purview of Section 97 (1) of the Penal Code Act unless it be shown in addition that at the time of giving the alleged approval, the applicant did not have the real or ostensible authority to give approval in his position as Speaker of the House of Representatives and/or that he gave the said approval for his own purpose.”
“The applicant cannot be charged with the offence of ‘dishonestly’ using account no. 00390070000018 to obtain a loan as alleged in courts 2-6 of the Charge and at the same time be charged with misappropriating the sums alleged in Counts 7-17 of the Charge by referring to the loan as ‘property of the Federal Government of Nigeria’ having regard to the fact that an alleged illegal loan facility from a commercial bank, cannot at the same time be the property of the Federal Government of Nigeria, capable of being misappropriated or stolen.
“The offence of agreement to commit a felony alleged in Count 12 of the Charge is unknown to any written law in that within the meaning and contemplation of Section 97 (1) of the Penal Code Act, an agreement to ‘approve the allowances and/or “running cost” of Members of the House of Representatives by a resolution of the House of Representatives at its Executive Session without the consent and approval of the Revenue Mobilization, Allocation and Fiscal Commission’ cannot be an agreement to commit an infraction of any written law or at all.
“The accused person/Applicant was not by the Constitution of the Federal Republic of Nigeria, 1999, National Assembly Service Commission Act or any other legislation, a public officer or a management staff or a custodian or person in possession of the properties of the House of Representatives or the property of the Federal republic of Nigeria, as alleged and cannot be liable under any law to account for the properties of the House of Representatives or the Federal government of Nigeria.
“The Applicant as the Speaker of the House of Representatives of the Federal Republic of Nigeria under the Constitution of the Federal Republic of Nigeria, 1999 has defined functions and duties which did not include possession or entrustment with the properties or with dominion over any property of the House of Representatives as alleged and can therefore not be charged with criminal breach of trust under Section 311 and punishable under Section 315 of the Penal Code.
“The Accused/Applicant in his capacity as Speaker of the House of Representatives and in exercise of his powers as chairman of the Principal Officers of the House of Representatives at Plenary, Executive or Committee session of the House of Representatives acted in official capacity and not personally, he cannot be personally liable for any criminal prosecution.”
It would be recalled that Justice Suleiman Belgore of the trial High Court on June 17, granted bail to both the former speaker and his erstwhile deputy, Usman Nafada Bayero, after the 1st accused person had already spent 12 days in EFCC custody.
The duo, who are facing trial over the alleged roles they played in a N40 billion loan scam, had on June 13, pleaded not guilty to the entire 17_count criminal charge against them.
EFCC specifically alleged that they breached public trust by agreeing to approve the allowances and ‘running costs’ of members of the 6th session of House of Representatives in violation of the approved remuneration package for political, public and judicial office holders by the Revenue Mobilization Allocation and Fiscal Commission, as well as, the extant Revised Financial Regulations of the Federal Government of Nigeria, 2009, and thereby committed an offence contrary to section 97(1) of the Penal Code Act, Cap 532, Laws of the Federation of Nigeria (Abuja) 1990 and punishable under section 315 of the same Penal Code Act.
The anti_graft commission further alleged that the accused persons, being entrusted with House of Representatives’ Account No. 00390070000018 with the United Bank of Africa, Plc and the Overhead Account of the House of Representatives with First Bank of Nigeria, Plc, properties of the Federal Government of Nigeria, dishonestly used the accounts to obtain loans totaling to about N40 billion.